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Direct Dial +1 (213) 620-7772 [email protected]
LOSANGELES 925667 (2K)
VIA ECF FILING AND OVERNIGHT MAIL
August 24, 2011
Ms. Molly C. Dwyer
Clerk
United States Court of Appeals for the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526
Re: Log Cabin Republicans v. United States of America et al.
Nos. 10-56634, 10-56813
Set for Oral Argument: September 1, 2011, Pasadena
Before Alarcon, OScannlain, and Silverman, CJJ
Dear Ms. Dwyer:
Appellee/cross-appellant Log Cabin Republicans (Log Cabin) submits thisletter pursuant to Federal Rule of Appellate Procedure 28(j) and Ninth Circuit Rule
30-1.8 to supplement the record to include three Certificates of Release or
Discharge From Active Duty (Form DD-214) pertaining to witnesses who testified
at the trial of this matter. Each of those Certificates of Release bears a Re-entry
Code (Box 27) either stating NOT APPLICABLE or designating the individual
as ineligible for re-enlistment. Each of the Certificates of Release was admitted in
evidence at trial with the indicated exhibit number.
The attachments to this letter are as follows:
A: DD-214 of Army PV2 John Alexander Nicholson III (Trial Ex. 110A),
showing re-entry code 4;
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Ms. Molly C. Dwyer
August 24, 2011
Page 2
LOSANGELES 925667 (2K)
B: DD-214 of Air Force Maj Michael David Almy (Trial Ex. 112),
showing re-entry code NOT APPLICABLE;
C: DD-214 of Air Force Ssgt Anthony John Loverde (Trial Ex. 134),
showing re-entry code 2C;
D: U.S. Army and Air Force re-entry eligibility codes, in Army Regulation
601-210, available at http://www.apd.army.mil/pdffiles/r601_210.pdf ,
retrieved August 23, 2011. Log Cabin requests that the Court take
judicial notice of Attachment D, pursuant to Federal Rule of Evidence201.
Attachment D interprets Army re-entry code 4 as nonwaivable disqualification
and Ineligible for enlistment, and Air Force re-entry code 2C as Not eligible for
enlistment unless waiver is granted.
These documents were not included in Log Cabins Supplemental Excerpts
of Record filed with its answering brief because they pertain to the issue of
mootness raised in this Courts July 11, 2011 Order directing the parties to show
cause why this case should not be dismissed as moot.
The DD-214 forms show the ongoing collateral consequences of discharges
under 10 U.S.C. 654 to former servicemembers Nicholson, Almy, and Loverde,
specifically that those discharges have rendered them ineligible to re-enlist. Those
collateral consequences persist notwithstanding the repeal of 10 U.S.C. 654
effective September 20, 2011.
Respectfully submitted,
WHITE & CASE LLP
By:/s/ Dan WoodsDan Woods
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Ms. Molly C. Dwyer
August 24, 2011
Page 3
LOSANGELES 925667 (2K)
cc: Henry C. Whitaker, Esq. (via ECF and overnight mail)
All ECF participants
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r / --5 G=--ANY ALTERATIONS IN SHADEDAUTION: NOT TO BE USED FOR THIS IS AN IMpORTANT RECORD.PURPOSES IT. AREAS FORM VOID
CERTIFICATE OF RELEASE OR DISCHARGE FROM ACTIVE DUTY
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Army Regulation 601210
Personnel Procurement
Active andReserveComponentsEnlistment
Program
HeadquartersDepartment of the ArmyWashington, DC8 February 2011
UNCLASSIFIED
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of ETS, may reenlist immediately with concurrent reassignment to a unit of the Selected Reserve (see AR 140111,chap 7).
321. U.S. Army reentry eligibility codesVerification of PS RE codes will be requested from agencies listed in paragraph 320. The following RE codes (seetables 31 through 34) are used for administrative purposes only. Applicants should be advised that these codes arenot to be considered derogatory in nature; they simply are codes used for identification of an enlistment processingprocedure.
Table 31U.S. Army reentry eligibility codes
Code Definition
RE1 Applies to: Person completing their term of active Service who is considered qualified to reenter the U.S. ArmyEligibility: Qualified for enlistment if all other criteria are met.
RE3 Applies to: Person who is not considered fully qualified for reentry or continuous Service at time of separation,but disqualification is waivable.Eligibility: Ineligible unless a waiver is granted.
RE4 Applies to: Person separated from last period of Service with a nonwaivable disqualification. This includes any-one with a Department of the Army imposed bar to reenlistment in effect at time of separation, or separated forany reason (except length of Service retirement) with 18 or more years AFS.Eligibility: Ineligible for enlistment.
RE4R Applies to: A person who ret ired for length of Service with 15 or more years AFS.Eligibility: Ineligible for enlistment.
RE 1A, 1B, 1C, 2, 2B,2C, and 4A
Applies to: Soldier separated prior to the effective date of this regulation. These codes will not be used. Eligibili-ty: Qualified for enlistment, provided reason and authority does not preclude enlistment or require a waiver. Ap-plicant may not enlist until 93 days after separation if otherwise qualified.
RE 2A, 3A, 3B, 3C,3D, 3E, 3S, and 3V
Applies to: Soldiers separated prior to the effective date of this regulation but did not meet reentry criteriaat time of separation.Eligibility: Ineligible unless a waiver is granted.
Table 32U.S. Navy and U.S. Coast Guard reentry eligibility codes
Code Definition
RE1, 1E, 1R, 3J, 3M,3X, 5, 6, and 7
Applies to: Eligible for reenlistment.Eligible: Qualified if all other applicable criteria are met.
RE3A, 3B, 3C, 3D,3E, 3F, 3G, 3H, 3K,3L, 3N, 3P, 3Q, 3R,3S, 3T, 3U, and 3Y
Applies to: Persons separated with disqualifications for retention.Eligibility: Not eligible for enlistment unless a waiver is granted.
RE -3A, 3B, 3R, 3T,3U, 3Y, and 3Z
Applies to: Persons separated with disqualifications for retention.Eligibility: For AR fully eligible for enlistment.
RE2, 3V and 4 Applies to: Ineligible for reenlistment.Eligibility: Not eligible for enlistment.
28 AR 601210 8 February 2011
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Table 33U.S. Air Force reentry eligibility codes
Code Definition
RE1, 1J, 1R, 1T, 2I,3A, 3I, and 3J
Applies to: Eligible to reenlist.Eligibility: Qualified if all other applicable criteria are met.
RE1A, 1K, 1M, 1P,2A, 2C, 2D, 2E, 2F,2J, 2K, 2L, 2M, 2N,2P, 2T, 2U, 2X, 2Y,3B, 3C, 3D, 3E, 3K, 4,4A, 4B, 4C, 4D, 4E,4F, 4G, 4H, 4I, 4J, 4K,4L, 4M, and 4N
Applies to: Ineligible to reenlist without waiver.Eligibility: Not eligible for enlistment unless waiver is granted.
RE2, 2B, 2G, 2H,2Q, 2R, 2S, and 2W
Applies to: Not eligible to reenlist.Eligibility: Not eligible for enlistment.
Table 34U.S. Marine Corps reentry eligibility codes
Code Definition
R1, 1A, 2A, 3A, and3U
Applies to: Eligible to reenlist.Eligibility: Qualified to enlist provided all other criteria are met.
RE1B, 1C, 2C, , 3C,3D, 3E, 3F, 3H, 3J,3N, 3O, 3P, 3R, 3S,3T, 3V, and 3W
Applies to: Personnel separated with disqualifications.Eligibility: Not eligible unless a waiver is granted.
RE2, 2B, and 4B Applies to: Not eligible to reenlistment.Eligibility: Not qualified for enlistment.
322. Reentry codes and separation program designator, any componentThe PS personnel who were released early to attend school or received SSB/VSI separation pay and received an SPDcode of KCB, KCF, MCA, MCB, MCF, or KCA may enlist without RE code waiver. Personnel who enlisted in the ARwho never shipped to IADT that subsequently were discharged for being an unsatisfactory participant may enlistwithout a waiver.
323. Determination of enlistment/assignment eligibility
a. The RA enlistment eligibility will be based on last discharge or separation. If the last period of Service was in RC(excluding IRR) qualification will be based on that separation/discharge.
b. The RC enlistment eligibility of a person who does not meet requirements shown in paragraph 323b, or whoselast period of military Service ended with a discharge from an AD status, must be determined before the enlistmentagreement is completed. If the person was discharged from AD status, the RE code, and SPD will be obtained. If lastperiod of Service was in RC (excluding IRR) qualification will be based on that separation/discharge. If an individuals
last period of Service was in the IRR or discharged from the IRR, then they will require the same processingprocedures as a prior Service who was discharged and required a waiver. However, if the applicant is currently in aTPU or member of ARNG for 6 months or more, or served in a TPU or ARNG after discharge from a regularcomponent, no waiver is required. If an applicant has been in the TPU or ARNG less than 6 months, a waiver isrequired. Soldiers with the following RE codes are fully eligible for RC enlistment/assignment if last discharge wasfrom the RA or other Services with the same reason and authority:
(1) RE1, RE1A, RE1B, and RE1C.
(2) RE2, RE2A, RE2C, 3A, and 3C.
(3) RE3, if DD Form 214/215 is annotated with separation authority, separation code, and narrative reason forseparation as follows:
(a) Separation authority: AR 635200 and other Services separation authority.
29AR 601210 8 February 2011
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